The Supreme
Court acknowledges that Mohammed Afzal Guru is not a terrorist and that
they have no direct evidence against him. Is he on death row on the
basis of a shoddy probe? Mihir Srivastava looks at
critical questions still unanswered

The thoroughness
of the probe can be judged by the court’s remarks. It
pulled up the police for faking arrest memos
and doctoring telephone conversations

December
13, 2001. “Five heavily armed persons stormed the Parliament House
complex and inflicted heavy casualties on the security men on duty.
This unprecedented event bewildered the entire nation and sent shockwaves
across the globe. In the gun battle that lasted thirty minutes, these
five terrorists who tried to gain entry into the Parliament when it
was in session, were killed. Nine persons including eight security personnel
and one gardener succumbed to the bullets of the terrorists and 16 persons
including 13 security men received injuries. The five terrorists were
ultimately killed…” — From the Supreme Court judgement.

Six years and three
judgements later, we still do not ‘reliably’ know who attacked
Parliament on December 13, 2001. What we do know is that Mohammed Afzal
Guru, the alleged conspirator, was awarded the death penalty but is
he being made a scapegoat? Is Afzal being held guilty for a crime that
is still unsolved?

Consider this:
the ‘comprehensive investigation’ of the attack on Parliament
was completed in 17 days flat by the investigators — the Special
Cell of the Delhi Police. The prosecution story of who attacked Parliament,
which is popularly believed to be the real story, is based on the confession
of the main accused Afzal Guru to the police under the Prevention of
Terrorist Activities Act (POTA). The Supreme Court has dubbed this confession,
and thus, in effect, the conspiracy theory behind the attack floated
by the police, as “unreliable”.

There are 12 accused
in the Parliament attack case. Five of them — Mohammad, Tariq,
Hamza, Rana and Raja — were killed when they tried to lay siege
on Parliament. The other three — Gazi Baba, Masood Azhar and Tariq,
allegedly the masterminds behind the attack and Lashkar-e-Toiba (let)
and Jaish-e-Mohammad (JeM) operatives — were never arrested. Gazi
Baba was shot in an encounter with security forces in 2004. His body
was recognised by Afzal’s brother. Only four accused were arrested:
Afzal Guru, his cousin Shaukat Hussain Guru, Shaukat’s wife Afsan
Guru and SAR Geelani, a teacher of Arabic in Delhi University. Geelani
and Afsan were acquitted. Not one of them was convicted under POTA charges.
Afzal does not belong to any banned terrorist organisation. Shaukat
was sentenced to 10 years rigorous imprisonment because he knew about
the conspiracy. Afzal was given the death sentence on the charges of
murder and for waging war against the State.

Quick probe
but no direct evidence against Afzal

The thoroughness
with which the investigations of such an important case were carried
out can be judged by the remarks made by the Delhi High Court. The court
has pulled up the investigators for the production of false arrest memos,
doctoring of telephone conversations and the illegal confining of people
to force them to sign blank papers. Despite these observations, “the
courts did not pass any strictures against the officers for their shoddy
and illegal investigations,” says Nandita Haksar, Geelani’s
lawyer.

There is no direct
evidence against Afzal. None of the 80 prosecution witnesses ever even
alleged that Afzal was in any way associated with or belonged to any
terrorist organisation. He has been awarded the death sentence entirely
on the basis of circumstantial evidence. Afzal did not shy away from
admitting the possibly incriminating fact that he brought Mohammad from
Kashmir and that he accompanied him when the latter purchased a second-hand
Ambassador, two days before the attack. The Supreme Court in its judgement
observes that even when his lawyer attempted to deny this fact during
the trial, Afzal insisted that he indeed had accompanied Mohammad.

They
didn’t need to die: Parliament staff pay homage
to security personnel who died in the attack

The
former Thane Police chief claimed that they had arrested Hamza
and handed him over to J&K cops in December 2000

Why was
the STF’s involvement not probed?

In the same vein,
Afzal maintains that he did this at the behest of the Special Task Force
(STF) of the Jammu and Kashmir police. Afzal alleged in a letter to
his lawyer Sushil Kumar in the Supreme Court that Davinder Singh, Deputy
sp of Humhama, in Jammu and Kashmir, asked him to take Mohammad to Delhi
and arrange for his stay there. “Since I was not knowing the man,
but I suspected this man is not Kashmiri, as he did not speak Kashmiri,”
wrote Afzal. “The facts of the letter were never put on record
before the courts,” charges Haksar.

It is clear from
the case records that Afzal is a surrendered militant, who gave himself
up to the bsf in 1993. Further, Afzal told the court that he was frequently
asked by the STF to work for them (a senior police official has confirmed
this to Tehelka). He said the STF extorted large sums of money from
him for not arresting him. But he was detained in as late as 2000 and
was offered the job of a special police officer. He met Tariq (a co-accused,
who is absconding) in the STF camp, where the latter was working.
It was Tariq who introduced Mohammad to him in the STF camp. The alleged
role of the STF in the Parliament attack, as per the court record, has
not been investigated at all. Davinder Singh confirmed that no investigator
ever got back to him and sought clarification on his alleged role in
sending Mohammad to Delhi with Afzal’s help. “Why will they
ask me this? He (Afzal) is saying this to save his own skin,”
said Singh.

In his reply, Singh
denies the allegations. “Do you want to say that we are behind
the Parliament attack,” he asked. Singh acknowledged that he had
once detained Afzal for interrogation. “We had reliable information
that he knew the whereabouts of Gazi Baba, one of the most dreaded terrorists
in Kashmir (and an accused in the case). But we couldn’t get anything
out of him and let him go.”

The Delhi Police
Special Cell had only Afzal to identify the bodies of the five assassins
gunned down in Parliament. There is no other corroborative evidence
that sheds light on the identities of these five terrorists. Later in
court, Afzal denied identifying them. “I had not identified any
terrorists. Police told me the names of the terrorists and forced me
to identify them,” Afzal told the court in his statement made
under Section 313 of the Criminal Procedure Code.

In the absence of
any direct evidence against Afzal, the Supreme Court said in its judgement:
“The incident which resulted in heavy casualty, has shaken the
entire nation and the collective conscience of the society will only
be satisfied if capital punishment will be awarded to the offender.”
Haksar does not agree with the court’s view. “The Supreme
Court has not passed any strictures against the corrupt officers for
their shoddy and illegal investigations and has held that there is no
direct evidence against Afzal. However they have confirmed the death
sentence because they believe that this death is necessary to assuage
Indian citizens.”

Guilty
of an unsolved crime?The
Supreme Court acknowledges that Mohammed Afzal Guru is not a terrorist
and that they have no direct evidence against him. Is he on death
row on the basis of a shoddy probe? Mihir
Srivastava looks at critical questions still unanswered